British Music Rights (BMR) was established in 1996 to speak on behalf of the UK’s songwriting, composing and music publishing community (see note 1).
British Music Rights welcomes the recommendations made by the UK Intellectual Property Office following its comprehensive review of the Copyright Tribunal, with a view to making it both more efficient and independent. The recommendations address most of our long standing concerns and we look forward to further consultation on the details during the implementation process.
Swift implementation of the recommendations is vital in order to ensure the smooth, impartial and effective functioning of the Copyright Tribunal as a dispute resolution mechanism. The role of the Copyright Tribunal is particularly important at this juncture as new means of disseminating copyright material emerge and new business models are developed and implemented.
Key points
• Procedural rules – We welcome the changes to the Copyright Tribunal procedures so as to incorporate the thinking and terminology of the Civil Procedure Rules.
• Resourcing of the Copyright Tribunal: We are pleased that the recommendations affirm the need for proper resourcing of the Copyright Tribunal and the observation that it should be able to function independently of the UK IPO.
• Commercial approach: It is very important that the Copyright Tribunal identifies and understands the commercial background of any dispute which it has to resolve. In particular it should not view itself as a regulatory tribunal and in so doing duplicate the role of the OFT.
Our comments on the recommendations in detail (based on the numbering of the Recommendations in the Summary)
(1) The CT should be balanced and have no disposition in favour of one side or the other.
We welcome this first recommendation which should be a natural assumption for any dispute resolution mechanism. In our earlier submissions we have expressed our concern that the Copyright Tribunal is often considered and perceived as a Regulatory Tribunal for the regulation of collecting societies and the prevention of their allegedly abusive conduct (following its original objective under the 1956 Copyright Act “to control possible abuse of monopolies in the performing rights field” which has been repealed in the 1988 Copyright Act).
It is all too easy to overlook the fact that the role of collecting societies is to represent the best interests of their tens of thousands of members, the vast majority of whom are individuals with virtually no bargaining power or expertise in protecting their rights and most of whom struggle to earn a living wage out of their creativity. We hope that any implicit presumption (real or perceived) that the licensing terms and conditions proposed by collecting societies are prima facie unreasonable due to their de facto monopolistic nature will be eliminated from the considerations of the Copyright Tribunal.
We note however, that in terms of practical proposals to ensure this, the only actual change proposed is recommendation (25) to allow societies themselves to make a reference. This is welcome in itself but it would be interesting to consider in further consultation whether there are any further steps that can be taken to ensure this aim.
We note that the application of Civil Procedure Rule 1.1 should assist in ensuring that cases are dealt with justly.
(2) The Copyright Tribunal Rules 1989 should be repealed and the proceedings of the CT governed by the CPR and practice directions.
We welcome this recommendation which brings proceedings before the Copyright Tribunal in line with those in civil litigation in England and Wales.
The Civil Procedure Rules have provided a successful model for civil proceedings and if applied to the Copyright Tribunal should result in a straightforward, quick and cost efficient procedure.
We look forward to working with the UK IPO in adapting the Civil Procedure Rules for use in the procedure of the Copyright Tribunal and drafting the relevant practice directions as suggested in this recommendation. We particularly endorse the applicability of the overriding objective of the Civil Procedure Rules.
Section A Civil Procedure Rules – overriding objective
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate
…
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
(3) There should be one standard form for all references to the CT.
This recommendation is welcome, and should streamline the process. Of course some references trigger certain specific considerations, such as section 118 CDPA 1988, where the Copyright Tribunal is obliged to make a specific decision as to whether to entertain the reference at all, for example on the basis that it may be premature, but we have no doubt that a single form can accommodate all relevant details to be noted.
(4) The fees of the CT should be abolished.
Whilst easy access to the Copyright Tribunal for all parties is broadly welcome we are concerned about the potential costs for collecting societies (and the individual right holders they represent) if they have to defend themselves against a myriad of vexatious and mischievous claims. In order to avoid such claims we suggest introducing mechanisms which ensure some level of serious intent in making the reference in the first place.
Again, looking at the Civil Procedure Rules we note the power to strike out a statement of case (c.f. Civil Procedure Rules 3.4) as well as some cost recovery mechanism for collecting societies in such cases. We also suggest examining the validity and seriousness of a claim at an early stage (for instance by looking at the evidence provided by the claimant). The permanent staff of the Copyright Tribunal should be well positioned to make this judgment, possibly based on a set of pre-established criteria before the case is submitted to the case management conference Some further consideration could also be given to the requirement to pay a deposit if a fee structure is deemed inappropriate.
(5) The reasoning behind licence schemes and tariffs should be clearly shown.
BMR supports transparency in the hope that this either avoids disputes altogether or makes the dispute resolution process quicker and easier by identifying the real issue of the dispute; we therefore generally welcome this recommendation subject to the essential provision, that collecting societies are able to protect privileged and/or confidential or sensitive commercial information of their own or that of their members (composers and music publishers) or their licensees. Further this should not be a disproportionate or one-sided burden on a collecting society in the Tribunal procedure.
(6) A challenge to the terms of a licence should be based on fact.
This recommendation is a helpful statement identifying the real issue of the dispute; it constitutes a deterrent for filing mischievous and vexatious claims provided the Copyright Tribunal applies this provision rigorously. To this end we suggest express implementation of this recommendation as a practice direction to the Copyright Tribunal.
On a related issue we note that there is a reference to the assistance of the Tribunal staff also being available to licensees who wish to propose different licensing terms (see note 2), without repeating the requirement that they should show their reasoning for their proposal as well. In the interests of ensuring full transparency and the perception of balanced Copyright Tribunal we believe that licensees should also be subject to a requirement similar to that in recommendation (5).
(7) The CT (with the extra resources mentioned in recommendation 18) should take an active part in formulating methodologies for the objectification of the criteria for the conditions of a licensing scheme or licence.
Assistance in complying with factual criteria (see note 3) of any new procedure applying to a reference will be welcome but the precise scope of this recommendation is not entirely clear to us; we anticipate further consultation on the definition of “active part.” Any involvement of Copyright Tribunal staff in what might be seen as the actual commercial process such as developing licence schemes and tariffs would firstly not be a good and efficient use of their time and resources; secondly it could result in delay to the promulgation of a scheme and therefore delay the launch of a proposed licensee’s new product; thirdly we share the concern alluded to in the report that the Copyright Tribunal’s impartiality should not in anyway be undermined or open to any perception that is it is compromised.
We suggest developing internal guidelines for objectifying the reasoning in close liaison between Copyright Tribunal staff and stakeholders in view of the sensitivities referred to in our comments regarding Recommendation (5). We also would point out that the formulation of any one methodology or single set of methodologies could be problematic in view of the multitude and variety of licences that are required, ranging from the licensing of the use of music in pubs to the licensing of online music providers; the futility of a one- size- fits- all methodology becomes even more apparent when considering the whole copyright spectrum: A photocopying licence for a copy shop in Manchester will be based on different criteria from a blanket music licensing to a major national broadcaster. It would be important therefore that any methodologies are flexible.
(8) Once an application has been made to the CT the case should be allocated to the chairman or deputy chairman, who should be responsible for all aspects of the case from thence forward.
We welcome this recommendation which should provide consistency and certainty and thus contribute to achieving the overriding objective of the CPRs, i.e. a cost and time efficient case management.
(9) Once the counterstatement has been received a case management conference (cmc) should be called as soon as possible to direct the management of the case.
We welcome this important procedural step as a means of managing both the substantive aspects of the case as well as the timeframe and other procedural aspects from the outset.
(10) The CT should ask for particular questions to be answered in the evidence.
(11) The CT should put clear limitations on the type and quantity of the evidence that is submitted.
(12) The emphasis should be on written rather than oral evidence.
(13) If a hearing is to take place it should be the subject of a strict timetable.
We can see the advantages of limiting evidence as regards time efficiency and process discipline. However, it is vital that the particular questions are developed in consultation with all parties and discussed during the case management conference. In our experience, it should remain possible to file evidence as the reference progresses as new issues arise and existing points are clarified or developed. It is important that there is sufficient flexibility to cater for additional evidence if required.
Generally however we welcome these recommendations, which should lead to a more streamlined approach of the proceedings provided of course the written evidence is duly considered by the members of the Copyright Tribunal in the same way oral evidence is.
(14) Expert evidence should only be allowed if strictly necessary. If there is expert evidence it should be by a single, joint expert.
We agree with the objective to limit the use of expert evidence to questions which are of relevance for the case. In our view the licensing of musical works is not a scientific process in which any expert is able to provide an objective opinion. As far as evidence by a single, joint expert is concerned we can foresee potential problems, in particular if the parties are not able to agree on (1) the need of a single, joint expert or (2) the identity of that person during the case management conference and (3) how and by whom that expert is to be instructed and (4) the scope of that expert evidence bearing in mind that the parties may have very different levels of internal expertise available to them, especially on issues of new technology.
We suggest that further consultation take place amongst practitioners as to the discretion that is applied within the High Court process on this aspect of the Civil Procedure Rules and believe that some discretion should be allowed for individually appointed experts albeit that the scope of such appointments should be transparent and closely managed.
(15) The CT should set a target for the completion of all cases, from receipt of application, to issue of decision.
We expect that this recommendation, which should constitute a part of the Case Management Conference, will further streamline the procedure of the Copyright Tribunal and we welcome it.
(16) Alternative Dispute Resolution (ADR) should be used when appropriate, there should be no compulsion to use it.
The need to consider ADR should encourage the parties to look for a time and cost effective solution of the dispute as well as focus the process on the actual substance of the dispute.
(17) The staff of the CT should be based in London and the UK Intellectual Property Office should supply the necessary accommodation.
(18) There should be a permanent staff of two who will report directly to the chairman of the CT.
We look forward to providing the permanent staff of the Copyright Tribunal with information which will enable them to give comprehensive responses to licensing queries as envisaged in para 8.17 of the review.
(19) There should be no restriction on the number of deputy chairmen.
We agree.
(20) The lay members should be abolished.
We agree.
(21) The head of the CT should be called the President.
(22) The position of president/chairman should be salaried and an open recruitment exercise held for the appointment of the first and future presidents.
(23) An annual budget for the CT should be set by the president/chairman in conjunction with the UK Intellectual Property Office
(24) The CT should be responsible for all content on its own website but the UK Intellectual Property Office should manage and administer the site for the CT.
Whilst the nomenclature and technical responsibilities within the Copyright Tribunal is of limited practical relevance for us we welcome the proposed transparency of the recruitment process and the proposal to provide specific funding for the Copyright Tribunal which we would expect to be adequate to enable it to fulfil its role which is of ever increasing importance in the development of new business models in the digital world.
(25) Licensing bodies should be able to make references to the CT under sections 118 and 125 of the CDPA.
We welcome this key recommendation which will help to redress the balance between collecting societies and users and empower collecting societies to make referrals where they consider a user to be acting unreasonably in not agreeing to licence terms.
(26) The provisions of sections 128A and 128B of the CDPA should be reviewed.
(27) Whether there should be a reference to the CT under section 128(A) of the CDPA should be determined by the chairman of the CT.
(28) There should not be any change in the basis for appeal from a decision of the CT.
We agree and support the respective views and suggestions put forward by PPL who have vast experience with the use and abuse of sections 128A and B of the CDPA.
(29) The CT should be responsible for granting licences for the use of orphan works.
As far as licensing of music is concerned there is no necessity for changes to the existing system based on the copyright licensing given that the comprehensive collecting societies’ databases make it possible to identify the right holders in virtually all cases.
As far as orphan works are concerned, collecting societies might also be the appropriate point of call to grant a licence should the right holder really not be identifiable.
The insignificance of orphan works in the field of music is also reflected in the limited number of references to the Copyright Tribunal under section 190 of the Copyright Designs and Patents Act (CDPA) 1988. Should Government nevertheless consider further activities in this area we suggest the extension of Section 190 CDPA 1988 mutatis mutandis which places the process of licensing orphan works within the remit of the Copyright Tribunal.
(30) The collecting societies should be referred to as licensing societies.
No comment.
British Music Rights, British Music House, 26 Berners Street, London W1T 3LR. Tel. +44 207 306 4446. Fax. +44 207 306 4449. E: britishmusic@bmr.org
Notes